N.T. RANGASWAMY, SON OF SRI. THIMMAIAH Vs. SRI. GOVINDAIAH @ GOVINDAPPA, SINCE DECEASED BY LEGAL REPRESENTATIVES ((A) GANGAMMA, WIFE OF LATE GOVINDAIAH

JUDGEMENT

(1.) HEARD the learned counsel for the parties. The parties are referred to by their rank before the trial court for the sake of convenience.

(2.) THE appellant was the plaintiff before the trial court. It was the case of the plaintiff that he was a tenant in respect of the premises bearing no. 113, 1st Main Road, 3rd Cross, 1st Stage, Agrahara Dasarahalli, KHB Colony, Bangalore, under the first defendant since 1978. The property was said to have been allotted to the first defendant during the year 1977. Since the first defendant was in urgent need of money for his family necessity, he had executed an agreement of sale dated 12.1.1995 in favour of the plaintiff, who was already in possession of the suit property as a tenant. The sale consideration agreed was Rs. 2,25,000/ - and the sale transaction was to be completed by the first defendant by executing a sale deed, after obtaining a 'No. Objection Certificate' from the Karnataka Housing Board within one year from the date of the agreement. The first defendant had executed a General Power of Attorney dated 12.1.1995, acknowledging that the plaintiff was in possession of the suit property and authorising him to maintain and protect the suit property. The first defendant is also said to have executed an affidavit of the same date acknowledging receipt of Rs. 2,25,000/ - from the plaintiff towards the sale consideration. The plaintiff further claimed that he had been a tenant since the year 1977 and by virtue of the agreement of sale under which, the entire sale consideration had been paid, the plaintiff continued in possession as an agreement -holder in possession. It was the plaintiff's apprehension that inspite of the above agreement of sale in his favour, the first defendant was making efforts to sell the property to third -parties, clandestinely, and therefore, had filed the suit. The first defendant, who entered appearance, had filed his written statement as well as objections to the applications of the plaintiff seeking injunctory reliefs. Upon noticing that the first defendant claimed to have sold the property in favour of the second defendant, the plaint was amended to implead defendant no.2 as well and to modify the relief prayed for. It was further contended in the plaint that without informing the plaintiff, the first defendant had obtained an absolute sale deed from the Karnataka Housing Board on 21.9.1995 and after obtaining the sale deed, had executed a sale deed in favour of the second defendant dated 30.10.1995, thereby seeking to defraud the plaintiff. It is further claimed that the second defendant was not a bona fide purchaser for value, as it was contended that the second defendant had contacted the plaintiff during September 1995 and he had been informed that the plaintiff was an agreement -holder in possession of the suit property and inspite of such knowledge, the second defendant had proceeded to enter into a sale transaction with the first defendant. Therefore, there was active collusion between the defendants, excluding the plaintiff, in nullifying the agreement of sale in favour of the plaintiff and therefore, has sought the relief of injunction, restraining the defendants from alienating the suit property and for specific performance of the agreement in his favour and for cancellation of the sale deed executed in favour of the second defendant. The plaint allegations were denied in the written statement by defendant no.1. The execution of the documents set up by the plaintiff were all denied. While it was admitted that the property had been sold in favour of the second defendant and that the first defendant had issued a notice, informing the plaintiff that such property was sold to the second defendant on 30.11.1995 and calling upon him to pay future rents in respect of the property in favour of the second defendant. The second defendant had also issued a similar notice of indicating the factum of attornment of tenancy. The second defendant had also filed a written statement claiming that the plaint allegations were false and incorrect, except that the plaintiff was a tenant in respect of the suit property and since he had continued to be the tenant, the tenancy was attorned in favour of the second defendant by the first defendant and therefore, the plaintiff was seeking to set up a false claim of being an agreement holder in possession.

(3.) THE learned counsel for the appellant contends that one of the reasons assigned by the trial court in dismissing the suit is that there was no sale agreement produced before the court. It is pointed out that Exhibit P.1 is indeed the agreement of sale. The court below has taken a dim view of the nomenclature of that document, in holding that there may have been another document, which was an agreement of sale and that Exhibit P.1 was a secondary document. The learned counsel would point out that from the tenor of Exhibit P.1, it cannot be construed as anything but an agreement of sale. The further finding of the court below that Exhibits - P.2 and P.3, namely, the General Power of Attorney and an affidavit executed by the first defendant were inconsistent with Exhibit P.1, is an incorrect finding, as can be seen from a plain reading of the said documents. If the documents are read together, they are certainly in conformity with each other and there is no inconsistency whatsoever and hence, there is no basis for such a finding by the trial court. It is evident from these documents that the sale transaction was deferred only to enable the first defendant to obtain a 'No Objection Certificate' from the Karnataka Housing Board, as there was no obligation outstanding on the part of the plaintiff. The further finding of the trial court that there was no receipt produced in respect of the advance sale consideration paid, is again a finding, which is erroneous, for the agreement itself contains the acknowledgement by the first defendant of having received the amount and the trial court holding that, in the absence of a receipt, the payment of the sale consideration was not proved, is, therefore, incorrect. It is further contended that the burden of proving Exhibit P.1, and the attendant documents was on the plaintiff. He had discharged that burden by demonstrating that the documents had been executed in the presence of a Notary and two witnesses, who were examined before the trial court. There is no other manner in which the plaintiff could have established the execution of Exhibit P.1. The court below having held that the evidence of PW.1 and PW.2 was inconsistent and that the oral testimony of the said witnesses was insufficient, is opposed to the settled law, when there was no reason to disbelieve the assertions of the said witnesses. The court below has sought to draw an adverse inference in the light of the fact that an expert witness had not been examined to prove the signatures of the defendant on the relevant documents, in the light of the first defendant having disputed the execution of the same. The plaintiff had examined the attesting witness and if the court was in doubt as to the actual execution of the documents by the first defendant, it was always open for the court to appoint a Court Commissioner for the purpose of examining the signatures and an adverse inference being drawn against the plaintiff in this regard. It is further contended that the second defendant was a pendente lite transferee inasmuch as she had purchased the property after the suit was filed and there was an order of temporary injunction also in operation as on 21.1.1995. The above circumstance that there was an order of injunction restraining the first defendant from alienating the property to third -parties was admitted. It was also admitted that the sale in favour of the second defendant was subsequent to the order and therefore, the second defendant was precluded from contesting the suit, and therefore, the suit ought to have been decreed in favour of the plaintiff, especially when the first defendant did not seek to contest the suit, apart from filing a written statement and there was virtually no defence or contest to the claim of the plaintiff. The court below has completely ignored these aspects. In the absence of any effective contest by the first defendant or his legal representatives insofar as bare denial of the execution of the agreement at Exhibit P.1, the court below could not have negated the said document. Reliance is placed on the case of Vidhyadhar vs. Manik Rao, 1999(3) SCC 102, wherein it is laid down that where a party to the suit does not appear and tender evidence on oath and does not offer himself to be cross -examined, a presumption would arise that the case set up by him is not correct. So also is the law as laid down in Eshwar Bai vs. Harihar Behara, 1999 (3) SCC 121. The learned counsel places reliance on the following judgments to contend that the reasoning of the court below is opposed to the principles laid down therein: -